Bryan Boo and Brenda Lee had recently successfully set aside a Judgment in Default of Appearance on the basis, among others, that the service of the originating process by way of registered post on the Defendant was irregular.
It is common that loan documents with financial institutions often contain a clause governing the mode of service. This may often be by way of regular post, registered post or A.R. registered post. Briefly and generally, where it relates to civil litigation against an individual, service of the originating process must be by way of personal service or by A.R. registered post. This is provided for under the Rules of Court 2012. However, where there the contract provides for a specific mode of service, then service of the originating process may be done in accordance with the agreed clause.
Federal Court Case of Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd
In the case of Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd (Civil Appeal No: 02(i)-35-04/2019(W)) (“Goh Teng Whoo“), the Federal Court held that the Court “… cannot seal a judgment in default of appearance where the affidavit of service does not exhibit the A.R. Registered card containing an endorsement as to receipt by the defendant himself or someone authorised to accept service of the same on his behalf.”
The respondent had served the Writ of Summons on the appellants by way of A.R. registered post pursuant to Order 10 Rule 1(1) of the Rules of Court 2012.
An affidavit of service was affirmed stating that the Writ of Summons was posted to the appellants’ last known addresses by way of A.R. registered post but no A.R. cards were exhibited. The affidavit of service only exhibited proof of posting by endorsing on the Writ of Summons the day and date of service.
As there was no appearance entered by the appellants, a judgment in default of appearance was entered.
The appellants applied to set aside the judgment in default of appearance on the basis that the A.R. cards were not exhibited and therefore the judgment should be set aside as of right, as in the absence of the A.R. card, service of the Writ of Summons on the appellants had not been proved by the respondent.
The respondent’s submission was that the respondent was entitled to rely on the postal receipt issued by the post office to as conclusive proof of service.
The Federal Court held that the presumption of service through the postal receipt is not conclusive proof of service but a rebuttable presumption that can be displaced by evidence to the contrary.
The Federal Court then held that, where service of a Writ of Summons is alleged to have been effected by way of sending the said Writ of Summons to a defendant by A.R. registered post pursuant to Order 10 Rule 1(1) of the Rules of Court 2012, the court cannot seal a judgment in default of appearance where the affidavit of service does not exhibit the A.R. registered card containing an endorsement as to receipt by the defendant himself or someone authorised to accept service on the defendant’s behalf.
Service Pursuant To A Contractual Term
Admittedly, the case of Goh Teng Whoo relates to service by way of A.R. registered post and the Federal Court’s deliberation was confined to Order 10 Rule 1 of the Rules of Court 2012. Service in pursuance of a contract, on the other hand, is governed by Order 10 Rule 3 of the Rules of Court 2012.
In the instant case, counsels for the bank relied on Order 10 Rule 3 of the Rules of Court 2012 and submitted that, as the parties had already agreed through the contract that service of originating process is to be by way of registered post, the Court should give effect to such contractual clause and deem that service was regular as the bank had complied with Order 10 Rule 3 of the Rules of Court 2012.
To that effect, the bank exhibited postal receipts as evidence that the Writ of Summons had been sent out by registered post and the contractual clause that deems due service 3 days after the posting of the Writ of Summons.
On the other hand, Bryan Boo and Brenda Lee submitted for the Defendant that the posting of the Writ of Summons by way of registered post only raises a presumption of service that is rebuttable and may be displaced by evidence proving that the Defendant did not receive the Writ of Summons. To that end, printouts of the tracking of the registered post showing that the registered post failed to be delivered to the Defendant and were returned to the sender was exhibited.
The High Court's Decision On Service
The High Court acknowledged that Goh Teng Whoo was a decision on Order 10 Rule 1 of the Rules of Court 2012 whereas the bank was relying on Order 10 Rule 3 of the Rules of Court 2012.
Be that as it may, following Goh Teng Whoo, the High Court held that the proof of service by way of registered post is a rebuttable presumption that may be displaced by the Defendant and, in the instant case, the presumption was rebutted.
Further, the High Court referred to the case of Arab-Malaysian Finance Bhd v Chong Chin Shoong (Civil Suit No: 22-71-1990) that referred to the case of Robert Batcheller & Sons, Limited v. Batcheller (All ELR Annotated, 5 May 1945, Vol. 1, p. 522) in that deeming something happened when it is not only known that it did not happen, but it is positively known that the precise opposite of it had happened, is an absurdity. On this basis, to deem that the Defendant was served the Writ of Summons when the evidence clearly showed that the Defendant had not received the registered post would amount to an absurdity.
Therefore, on the issue of service, the High Court held that service of the Writ of Summons was irregular and set aside the judgment in default of appearance.
However, the High Court did not furnish any written grounds of judgment and the decision was not appealed.
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